Kearns v. Clark

• Decision Date: 19 June 1985
• Citation: 343 Pa.Super. 30,493 A.2d 1358
• Parties: Joseph M. KEARNS and Elizabeth Jane Kearns, H/W, Appellees, v. William R. CLARK, M.D., Appellant. Joseph M. KEARNS and Elizabeth Jane Kearns, H/W, v. RIDDLE MEMORIAL HOSPITAL and Marie T. Burke, M.D. Appeal of RIDDLE MEMORIAL HOSPITAL.
• Court: Pennsylvania Superior Court

Page 1358

493 A.2d 1358

343 Pa.Super. 30

Joseph M. KEARNS and Elizabeth Jane Kearns, H/W, Appellees, v. William R. CLARK, M.D., Appellant.

Joseph M. KEARNS and Elizabeth Jane Kearns, H/W, v. RIDDLE MEMORIAL HOSPITAL and Marie T. Burke, M.D.

Appeal of RIDDLE MEMORIAL HOSPITAL.

Superior Court of Pennsylvania.

Argued July 10, 1984.

Filed April 12, 1985.

Reargument Denied June 19, 1985.

J. Grant McCabe, III, Philadelphia, for appellant (at 2997).

James E. Beasley, Philadelphia, for appellees.

Before WIEAND, OLSZEWSKI and POPOVICH, JJ.

WIEAND, Judge:

Dr. William R. Clark performed a hysterectomy for Elizabeth Jane Kearns at the Riddle Memorial Hospital. He was assisted by Dr. Johnson, an employee of the hospital. Eight days later, after Mrs. Kearns had continued to complain of pain, it was discovered that she had a blocked ureter. This, it was shown, had been caused by a wayward suture placed in the ureter. The left kidney thereafter became diseased and died, and it became necessary to remove the same. Mrs. Kearns and her husband filed separate actions against Dr. Clark and the hospital, which were consolidated and tried before a jury. The jury returned a verdict finding both defendants negligent and awarding damages of $203,000 to the wife-plaintiff and $105,000 to the husband-plaintiff. Post-trial motions were denied, and the verdicts were reduced to judgment. Dr. Clark and the hospital appealed.

I. DR. CLARK'S LIABILITY.

In reviewing a denial of a motion for judgment n.o.v., the evidence and all reasonable inferences therefrom must be considered in the light most favorable to the verdict winner. Aiello v. Ed Saxe Real Estate Inc., 327 Pa.Super. 429, 435, 476 A.2d 27, 29 (1984); Reichman v. Wallach, 306 Pa.Super. 177, 184, 452 A.2d 501, 505 (1982). A judgment n.o.v. should be entered only in clear cases, and all doubt should be resolved in favor of the verdict winner. Rivera v. Philadelphia Theological Seminary, 326 Pa.Super. 509, 521, 474 A.2d 605, 609 (1984); Reichman v. Wallach, 306 Pa.Super. at 184-185, 452 A.2d at 505. A motion for judgment n.o.v. can properly be granted only "when no two reasonable minds could differ that, as a matter of law, the party has failed to make out his case." Aiello v. Ed Saxe Real Estate Inc., supra 327 Pa.Super. at 433, 476 A.2d at 29.

The evidence in this case was sufficient, if believed, to show that Dr. Clark had failed to identify and protect the ureter, had sutured the ureter, thereby causing it to be obstructed, and had failed to provide adequate post-operative care. The obstruction to the ureter prevented the passage of urine from the kidney into the bladder and thereby caused a painful swelling of the kidney. A failure to correct it promptly, a jury could find, caused the death and ultimate loss of the kidney.

Appellees were not required to exclude every possible explanation for the loss of Mrs. Kearns' kidney. "[I]t is enough that reasonable minds are able to conclude that the preponderance of the evidence shows defendant's conduct to have been a substantial cause of the harm to plaintiff." Hamil v. Bashline, 481 Pa. 256, 266, 392 A.2d 1280, 1285 (1978). The evidence in this case was sufficient to sustain the finding of the jury that Dr. Clark had negligently caused the injuries of which Mrs. Kearns complained.

The trial court also found that the jury's verdict imposing liability on Dr. Clark was not against the weight of the evidence. We will reverse only for a manifest abuse of discretion. Mattox v. Philadelphia, 308 Pa.Super. 111, 115, 454 A.2d 46, 48 (1982). We find no abuse of discretion in this case.

Dr. Clark argues in support of his motion for new trial that Dr. Varano, a urologist, was incompetent to evaluate and express an opinion about the performance of Dr. Clark, a gynecologist. In considering whether to order a new trial because of the trial court's ruling that Dr. Varano was qualified to testify as an expert, we keep in mind that the ruling was within the sound discretion of the trial court. We will not order a new trial unless the ruling was so clearly erroneous as to constitute an abuse of discretion. Dambacher v. Mallis, 336 Pa.Super. 22, ---, 485 A.2d 408, 415 (1984). In Regan v. Steen, 229 Pa.Super. 515, 331 A.2d 724 (1974), a surgeon was permitted to express an opinion that death of tissue had been caused by x-ray radiation. It was argued that because he was a surgeon and not a radiologist he should not have been permitted to testify as an expert. This Court held: "Due to the witness's familiarity with the use of x-ray and his knowledge of the results of radiation given in massive doses, we find no abuse of discretion on the part of the trial judge in admitting his testimony." Id. at 522, 331 A.2d at 728. Accord: Christy v. Darr, 78 Pa.Cmwlth. 354, 359, 467 A.2d 1362, 1364-1365 (1983) (neurosurgeon permitted to testify regarding double vision and loss of hearing suffered by the plaintiff); Workmen's Compensation Appeal Board v. Jones & Laughlin Steel Corp., 22 Pa.Cmwlth. 469, 472, 349 A.2d 793, 795 (1975) (orthopedist permitted to testify as expert regarding urological and psychological effect of fractured pelvis). Dr. Varano, a urologist, was familiar with the pre-operative identification and protection of ureters and had assisted in the performance of prior hysterectomies. The trial court did not commit an abuse of discretion by allowing him to testify as an expert witness.

In the motion for new trial filed in this case, Dr. Clark averred "the Court erred with respect to its charge." In his appellate brief, Dr. Clark states the sufficiency of the trial court's jury instructions as follows:

THE CHARGE OF THE COURT BELOW FAILED CLEARLY AND CORRECTLY TO DEFINE THE ISSUES TO BE RESOLVED BY THE JURY; FAILED ACCURATELY, IMPARTIALLY AND WITHOUT PREJUDICE TO DEFENDANTS TO STATE IN PLAIN LANGUAGE THE APPLICABLE PRINCIPLES OF LAW GOVERNING THE ISSUES OF LIABILITY AND CAUSATION PRESENTED AT TRIAL; AND FAILED TO ASSIST THE JURY IN APPLYING SUCH LEGAL PRINCIPLES TO THE FACTS OF THE CASE PRESENTED....

It is questionable whether the motion for new trial and appellate brief are sufficient to preserve for appellate review the issue of whether the trial court should have charged on principles of liability in view of the fact that the jury was required to answer a series of special interrogatories. In any event, the interrogatories used in this case were general, and the trial court's instructions regarding negligence, causation and liability were appropriate. Dr. Clark has failed to direct our attention to any specific error of omission or commission by the trial court, and our own review suggests a general charge which was free of error. When an appellate court reviews a trial judge's charge to the jury, it must view the charge as a whole in order to determine if error occurred. McCay v. Philadelphia Electric Co., 447 Pa. 490, 291 A.2d 759 (1972); Bohner v. Stine, 316 Pa.Super. 426, 463 A.2d 438 (1983).

Dr. Clark also argues that the trial judge prevented the jury from considering his defense of superseding cause. He offered specific points for charge on this defense, which the court declined to use. Instead, the trial judge stated that he would cover the defense generally in his charge. Dr. Clark asserts that the general charge failed to instruct the jury adequately regarding superseding cause and that this was prejudicial error. "A trial judge has wide latitude in charging the jury, and may use any particular language provided the language used adequately and fully conveys to the jury the law applicable to the facts of the case." Fish v. Gosnell, 316 Pa.Super. 565, 580, 463 A.2d 1042, 1050 (1983). Accord: Kopar v. Mamone, 419 Pa. 601, 215 A.2d 641 (1966). The trial court correctly charged the jury on causation and, with respect to other causes, stated: "The fact that some other factor may have been a contributing cause of an injury does not relieve a defendant of liability, unless you find that such other cause would have produced the injury complained of independently of his negligence." This was sufficient.

It is also contended that the trial court committed prejudicial error by refusing to allow certain documents to be taken into the deliberating room during the jury's deliberations. Specifically, the trial judge excluded the curriculum vitae of two defense expert witnesses, an expert witness' report, and Dr. Clark's patient records of Mrs. Kearns. "The general rule in Pennsylvania is that exhibits properly admitted into evidence, with the exception of depositions and transcripts of testimony, may, within the discretion of the trial court, be sent out with the jury." Wilson v. Pennsylvania Railroad Co., 421 Pa. 419, 432 n. 8, 219 A.2d 666, 673 n. 8 (1966). Accord: Solomon v. Luria, 213 Pa.Super. 87, 246 A.2d 435 (1968). We conclude that the trial judge in this case did not abuse his discretion by refusing to permit the jurors to take out with them the exhibits which had been received in evidence. The substantive matters in the two curriculum vitae were received as testimony during the qualification of Dr. Goodner and Dr. Hill as experts. The educational backgrounds and professional credentials of each were fully described and discussed. Similarly, the four page report of Dr. Goodner was the subject of direct testimony and cross-examination, during which portions of the report were read into the record. The relevant substance of these three documents, therefore, was placed before the jury, and it was within the judge's discretion to withhold the actual documents from the jury during the period of its deliberations.

The patient records of Mrs. Kearns raised a different concern. The medical terms and notations contained therein were subject to misinterpretation in the absence of explanation. These records had been received in evidence, and any party could have made reference thereto or directed the jury's attention to specific...